REPORT AND RECOMMENDATION ON DEFENDANT DEPARTMENT OF
CORRECTION'SMOTION TO DISMISS (DKT. 39)
AND DEFENDANTS' MOTION TO DISMISSAND/OR
FOR SUMMARY JUDGMENT (DKT. 57)

DONALD
L. CABELL, U.S.M.J.

Pro
se prisoner Frank Paul LeBeau Jr. (“the
plaintiff”) contends that the defendants -- the
Department of Correction (DOC) and certain former and/or
current DOC employees -- violated his 14th Amendment rights
by allowing dangerous conditions to persist within the prison
at MCI-Norfolk. The plaintiff seeks monetary damages and
injunctive relief under 42 U.S.C. § 1983. The defendants
have filed motions to dismiss and/or for summary judgment.
Because I conclude that there was insufficient service of
process on the individual defendants and that the
plaintiff's claims are moreover either barred or without
merit, I recommend that the defendants' motions be
allowed.

The
plaintiff arrived at MCI-Norfolk in August of 2008. (Compl.
¶ 11). Once there, the plaintiff was harassed by a few
inmates who threatened to cause the plaintiff serious
physical harm. (Compl. ¶ 11). The harassment continued
until March 26, 2012. (Compl. ¶ 12). Correctional staff,
including Officer Zwicker, were aware of the situation.
(Compl. ¶ 12).

On
March 26, 2012, the plaintiff was seriously beaten in his
cell by his cellmate, who was one of the inmates who had
harassed him since his arrival at the prison. (Compl. ¶
15). The plaintiff's left side of his face was swollen
and bruised, and his entire body was in pain. (Compl. ¶
16). Currently, the plaintiff suffers from psychological
trauma and sleep deprivation, and is receiving medical and
mental health treatment. (Compl. ¶ 16). The plaintiff
was subsequently transferred to NCCI-Gardner. (Compl. ¶
22).

B.
The Amended Complaint

The
amended complaint advances two claims under 42 U.S.C. §
1983 alleging 14th Amendment violations.[2] It is not
entirely clear from the complaint what distinguishes the two
claims but the plaintiff provided some clarification at oral
argument. Count One alleges that three former DOC employees,
former DOC Commissioner Luis S. Spencer (Spencer), former
MCI-Norfolk Superintendent Gary Roden (Roden) and former
MCI-Norfolk Correctional Officer Jarret T. Zwicker (Zwicker),
were deliberately indifferent to a substantial risk of
serious injury from inmate-on-inmate assault at MCI-Norfolk.

In
contrast, Count Two relates principally to a specific event
on March 26, 2012, in which the plaintiff's cellmate
assaulted the plaintiff in their cell. The amended complaint
alleges that defendant Zwicker's and
“defendant[s‘] management[‘s]” [sic]
failure to take steps to prevent the assault and failure to
properly intervene in the ongoing assault on March 26, 2012
amounts to deliberate indifference.

C.
Procedural History

On
March 24, 2015, the plaintiff filed a complaint naming
Spencer, Roden and Zwicker as defendants. The U.S. Marshals
Service (USMS) attempted to effect service on the defendants
on the plaintiff's behalf but were unsuccessful; all
three summonses were returned unexecuted. (Dkts. 14-16). The
summonses were subsequently reissued but the docket does not
reflect whether they were ever served or returned. (Dkt. 26).

Almost
a year later, on February 24, 2016, the plaintiff filed an
amended complaint which named the same three individuals and
the DOC as defendants. (Dkt. 27). The plaintiff subsequently
sent the Court a letter which was interpreted as a request
for an extension of time to serve the amended complaint.
(Dkts. 28-29). The Court found good cause to allow an
extension of time and summonses were issued for all four
defendants for the amended complaint. (Dkt. 29-30).

The
USMS successfully served the amended complaint on
Zwicker[3]and on the DOC (Dkt. 31, 32), but was
unable to effect service on Spencer or Roden because they
were no longer employed by the DOC.[4] With respect to Spencer, the
Receipt and Return of Service reflects that the USMS spoke to
David Rentsch, a DOC representative, on April 27, 2016, and
was told that the DOC's legal department would not accept
service on Spencer's behalf. (Dkt. 33). The USMS
apparently tried to serve Spencer personally on May 2 and May
18, 2016, but did not succeed. (Dkt. 33). With respect to
Roden, Rentsch similarly informed the USMS that the DOC's
legal department would accept service for the current DOC
Commissioner but would not accept service for former or
current DOC employees. (Dkt. 34). Following failed attempts
by the USMS to personally serve Roden on May 12, May 23, and
June 2, 2016, the summons was returned unexecuted.
(Id.).

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